By Howard Fischer
Capitol Media Services
PHOENIX -- A judge has given the go ahead for Attorney General Mark Brnovich to pursue consumer fraud statutes against internet giant Google.
In a 12-page ruling Friday, Maricopa County Superior Court Judge Timothy Thomason rejected a bid by attorneys for the firm to dismiss the case. The judge said that the allegations Brnovich is making that the company hid its practices of selling location information of consumers to advertisers are sufficient to allow the case to go to a jury.
But Thomason also said that, when all is said and done, he's not sure Brnovich and his lawyers actually can make their case.
Central to the lawsuit is the contention that the company not only collect and stores location data but deliberately makes it difficult for those who use Android phones that operate on the Google-created operating system to know what information is being sent. Brnovich also argues that the company does not make it simple for people to turn off tracking.
What that's all about, the lawsuit contends, is the ability of Google to sell that information to advertisers to target users in specific locations. That information, Brnovich said, generated $135 billion for Google in 2019.
The hurdle Brnovich now must overcome is to prove that anything Google did fits within the scope of the Arizona Consumer Fraud Act, the only power Brnovich has over the company.
Thomason said that law protects Arizona consumers from deceitful practices. But he said more is require.
"A deceitful practice itself is not enough to fall under the ACFA,'' Thomason wrote. "Rather, it must be connected to the sale or advertisement of merchandise.''
The problem Brnovich has, the judge said, is showing some link between anything Google did and the decision by individuals to purchase Android phones.
"The facts might ultimately demonstrate that the deceit is far too removed from the sales or advertisements to satisfy the statutory requirement,'' Thomason wrote.
Brnovich says the lawsuit is not just related to the sale of the phones. He said that there were "actionable sales'' of various apps, including maps and the Google Chrome software.
Only thing is, consumers didn't actually purchase any of those apps.
"There has to be a sale,'' the judge said.
"Gratuitous transfers are clearly not covered,'' Thomason said. "If the apps were truly provided free of charge, it is hard to see how they could have been sold.''
But the judge said he will allow Brnovich to try to prove that there was a "sale,'' specifically the sales of advertising by Google based on its tracking of phone users.
Still, Thomason is skeptical that the state ultimately can make its case.
"Google does make convincing arguments,'' he wrote.
"For example, the deception does appear to be far removed from Google's sale of ads to third parties,'' the judge continued. "The sale of ads to third parties certainly does not appear to be part of the consumer's bargaining process.''
And Thomason said there is no legal precedent to support Brnovich's contention that there is a sufficient connection between the deceit of the consumer and the sale of advertising to others.
"Whether the state can ultimately prove that this is the case is questionable,'' he said.
Thomason noted that Brnovich does have another legal theory.
The state contends that the deceit also involves the companies that manufacture the phones running the Android operating system. That includes inducing manufacturers to not make it easy to shut down location tracking when users are setting up their phones.
All that, Thomason said, could provide "strong circumstantial evidence'' that Google was relying on information on the tracking being concealed from users.
No date has been set for a trial.